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24802 - Poston v. Poston

Davis Adv. Sh. No. 21
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Wilma R. Poston, Respondent

v.

William S. Poston, Petitioner

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Florence County

Mary E. Buchan, Family Court Judge

Opinion No. 24802

Heard February 17, 1998 - Filed June 8, 1998

Affirmed as modified in part; reversed in part;

and remanded.

John O. McDougall and Patricia L. Forbis, both of

McDougall &, Self, L.L.P., of Sumter, for petitioner.

Frederick K. Jones, of Florence; and Barbara

Tolson-Haywood, of Hartsville, for respondent.

BURNETT, A.J.: In this domestic action, respondent, Wilma

R. Poston, was adjudged guilty of contempt for failing to abide by prior

orders of the family court. The Court of Appeals reversed and remanded

finding the judge applied the wrong standard of proof in holding

respondent in criminal contempt. Poston v. Poston, Op. No. 96-UP-431

p.51


POSTON v. POSTON

(S.C. Ct. App. filed November 26, 1996) (Cureton, J. concurring and

dissenting). We affirm as modified in part; reverse in part; and remand.

FACTS

The parties were married in 1970. They had four children. In

1992, the family court issued a decree of separate maintenance and

support and awarded custody of the children to petitioner. In 1993, the

family court terminated respondent's visitation and barred her from

having any personal and telephone contact with two of the parties' minor

children. The court also restrained respondent from going within one

block of the marital home where the children resided and from going to

their schools, sporting events and church events.

In September 1994, the family court issued an order and rule

to show cause following petitioner's filing of a contempt petition. At the

hearing, petitioner produced evidence demonstrating respondent violated

the 1993 order by visiting the home and telephoning the children on

several occasions. In its order issued in 1995, the court found. respondent

willfully violated the 1993 order. The family court ruled as follows:

[Respondent] is in willful contempt. She shall be sentenced to

120 days incarceration but may purge herself of contempt by

strict compliance with this Order and the prior Order -

[December 21, 1993]. An additional restriction shall be

imposed to prohibit [respondent] from coming within 50 yards

of the children; and [respondent] shall be required to pay the

attomey's fees as ordered herein.

(emphasis added).

The Court of Appeals reversed this order finding the family

court judge held respondent in criminal contempt and applied the wrong

standard of proof. The Court of Appeals remanded the matter to the

family court for further proceedings. Id. Judge Cureton disagreed with

the majority's holding that respondent was held in criminal contempt.

However, he recommended reversing the family court order to the extent it

can be read to impose sanctions in advance for a violation of the new

restriction included in the contempt order issued in 1995. Id.

p.52


POSTON v. POSTON

ISSUES

I. Did the Court of Appeals err in finding the family court

held respondent in criminal contempt?

II. Did the Court of Appeals err in vacating the award of

attorney's fees to petitioner?

DISCUSSION

Petitioner argues the Court of Appeals erred in finding

respondent was held in criminal contempt. We agree.

The major factor in determining whether a contempt is civil or

criminal is the purpose for which the power is exercised, including the

nature of the relief and the purpose for which the sentence is imposed.

17 Am.Jur.2d Contempt § 9 (1990); see also Hicks v. Feiock, 485 U.S. 624,

108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); State v. Magazine, 302 S.C. 55, 393

S.E.2d 385 (1990), abrogated on other grounds by. State v. Easler, 327

S.C. 655, 393 S.E.2d 385 (1997). The purpose of civil contempt is "to

coerce the defendant to do the thing required by the order for the benefit

of the complainant." Gompers v. Buck's Stove & Range Co., 221 U.S. 418,

441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911). The primary purposes of

criminal contempt are to preserve the court's authority and to punish for

disobedience of its orders. State v. Bevilacqua, 316 S.C. 122, 447 S.E.2d

213 (Ct. App. 1994). "If it is for civil contempt the punishment is

remedial, and for the benefit of the complainant. But if it is for criminal

contempt the sentence is punitive, to vindicate the authority of the court."

Hicks v. Feiock, 485 U.S. at 631, 108 S.Ct. at 1429, 99 L.Ed.2d at 731

(quoting Gompers v. Buck's Stove & Range Co., 221 U.S. at 441, 31 S.Ct.

at 498, 55 L.Ed. at 806).

"An unconditional penalty is criminal in nature because it is

'solely and exclusively punitive in nature.'" Hicks v. Feiock, 485 U.S. at

633, 108 S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330

U.S. 585, 593, 67 S.Ct. 918, 922, 91 L.Ed. 1117, 1124 (1947)). "The relief

'cannot undo or remedy what has been done nor afford any compensation

and the contemnor cannot shorten the term by promising not to repeat his

offense."' Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d

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POSTON v. POSTON

at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31

S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of

imprisonment, . . . it is punitive if the sentence is limited to imprisonment

for a definite period." Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429,

99 L.Ed.2d at 731; see also State v. Magazine, supra. If the sanction is a

fine, it is punitive when it is paid to the court. However, a fine that is

payable to the court may be remedial when the contemnor can avoid

paying the fine simply by performing the affirmative act required by the

court's order. Hicks v. Feiock, supra; State v. Magazine, supra.

In civil contempt cases, the sanctions are conditioned on

compliance with the court's order. Hicks v. Feiock, supra; State v.

Magazine, supra. "The conditional nature of the punishment renders the

relief civil in nature because the contemnor 'can end the sentence and

discharge himself at any moment by doing what he had previously refused

to do."' Hicks v. Feiock, 485 U.S. at 633, 108 S.Ct. at 1430, 99 L.Ed.2d

at 732 (citing Gompers v. Buck's Stove & Range Co., 221 U.S. at 442, 31

S.Ct. at 498, 55 L.Ed. at 806). "If the relief provided is a sentence of

imprisonment, it is remedial if the defendant stands committed unless and

until he performs the affirmative act required by the court's order ......

Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429, 99 L.Ed.2d at 731.

"Those who are imprisoned until they obey the order, 'carry the keys of

their prison in their own pockets."' Hicks v. Feiock, 485 U.S. at 633, 108

S.Ct. at 1430, 99 L.Ed.2d at 732 (citing Penfield Co. v. SEC, 330 U.S. at

590, 67 S.Ct. at 921, 91 L.Ed. at 1123). If the sanction is a fine, it is

remedial and civil if paid to the complainant even though the contemnor

has no opportunity to purge himself of the fine or if the contemnor can

avoid the fine by complying with the court's order. Hicks v. Felock. supra;

State v. Magazine, supra; see also In re General Motors Corp., 61 F.3d

256 (4th Cir. 1995), opinion after remand, 110 F.3d 1003 (4th Cir.), cert.

denied, U.S. , 118 S.Ct. 61, 139 L.Ed.2d 24 (1997) (remedies for

civil contempt include ordering the contemnor to reimburse the

complainant for losses sustained and for reasonable attorney's fees); 17

Am.Jur.2d Contempt § 237 (1990) (court may impose a fine payable to the

aggrieved party as compensation for losses sustained); Annotation, Right of

Injured Party to Award of Compensatory Damages or Fine in Contempt

Proceeding, 85 A.L.R.3d 895 (1978); United States v. United Mine Workers

of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Curlee v.

Howle, 277 S.C. 377, 287 S.E.2d 915 (1982) (contempt was civil where

appellant could purge himself of one year sentence by paying respondent's

expenses she incurred in recovering the children from appellant).

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POSTON v. POSTON

Compare with State v. Magazine, supra (because contemnor could not

purge himself of the contempt by merely complying with the court's order

where contemnor was ordered to serve one year in prison or pay to the

court a fine of $1500.00 the contempt was criminal).

Civil contempt must be proven by clear and convincing

evidence. United Mine Workers of America v. Bagwell, 512 U.S. 821, 114

S.Ct. 2552, 129 L.Ed.2d 642 (1994) (burden of proof in civil contempt

proceeding is clear and convincing); In re General Motors Corp., supra

(civil contempt must be proven by clear and convincing evidence); 17

Am.Jur.2d Contempt § 207; see also Moseley v. Mosier, 279 S.C. 348, 306

S.E.2d 624 (1983) (willfulness of the violation must be shown by clear and

specific acts or conduct); Curlee v. Howle, supra (before a person may be

held in contempt, the record must be clear and specific as to the acts or

conduct upon which such finding is based). In a criminal contempt

proceeding, the burden of proof is beyond a reasonable doubt. State v.

Bowers, 270 S.C. 124, 241 S.E.2d 409 (1978); State v. Bevilacqua, supra.

The United States Supreme Court has held a defendant

charged with a serious as opposed to a petty criminal contempt 's entitled

to a jury trial. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct.

2687, 41 L.Ed.2d 912 (1974) (a contemnor had no right to a jury trial

where the sentence imposed is confinement for six months or less); Frank

v. U.S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (lengthy

probation was not serious enough to entitle conterrmor to a jury trial);

Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975)

(payment of a $10,000 fine was not serious). But see Ex Parte Griffin,

682 S.W.2d 261 (Tex. 1984) (a $104,000 fine and a sentence to jail for 30

days was a serious offense entitling the contemnor to a jury trial). A civil

contempt proceeding does not require a jury trial. Shillitani v. U.S., 384

U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) (no jury trial is required

for a civil contempt proceeding even though the resulting imprisonment

may be long because the contemnor may avoid the sanction-by complying

with the court's order); see also 17 Am.Jur.2d Contempt § 203.

In a civil contempt proceeding, a contemnor may be required to

reimburse a complainant for the costs he incurred in enforcing the court's

prior order, including reasonable attorney's fees. The award of attorney's

fees is not a punishment but an indemnification to the party who

instituted the contempt proceeding. Thus, the court is not required to

provide the contemnor with an opportunity to purge himself of these

p.55


POSTON v. POSTON

attorney's fees in order to hold him in civil contempt. See Whetstone v.

Whetstone, 309 S.C. 227, 420 S.E.2d 877 (Ct. App. 1992) (court properly

awarded wife attorney's fees incurred as the result of husband's contempt);

17 Am.Jur.2d Contempt § 241 (it is within the trial court's discretion to

award reasonable attorney's fees to the prevailing party in a civil contempt

proceeding); A.S. Klien, Annotation, Allowance of Attorney's Fees in Civil

Contempt Proceedings, 43 A.L.R.3d 793 (1972); see also Curlee v. Howle,

supra; Golden v. Gallardo, 295 S.C. 393, 368 S.E.2d 684 (1988) (attorney's

fees are recoverable in post-divorce litigation concerning visitation and

support of parties' minor children). A governmental body, as a

complainant, may recover attorney's fees in a successful contempt

proceeding, provided no statute prohibits recovery. Donovan v. Burlington

Northern Inc., 781 F.2d 680 (9th Cir. 1986) (an award of attomey's fees to

the governmental agency, the complainant, is within the court's discretion);

Matter of St. Charles Mfg. Co., 663 F. Supp. 310 (N.D. 111. 1987) (holding

an award of attorney's fees to government was proper because such an

award is within the inherent power of the court to remedy civil contempt);

United States v. Greyhound Corp., 370 F. Supp. 881 (N.D. 111. 1974) (upon

a finding of civil and/or criminal contempt, a court may award to the

complainant, as part of the civil relief, attorney's fees); 17 Am.Jur.2d

Contempt § 243. Although usually a complainant is not entitled to

attorney's fees in a criminal contempt proceeding, depending on the

circumstances, such an award may be proper. 17 Am.Jur.2d Contempt §

247. After all, the award of attorney's fees is not part of the punishment;

instead, this award is made to indemnify the party for expenses incurred

in seeking enforcement of the court's order.

The following are examples of civil contempt sanctions:

I. The contemnor is ordered to pay a fine to the

court; however, he may purge himself of the fine by

complying with the prior court order.

II. The contenmor is given a jail sentence to be,

served until he agrees to comply with the prior

court order.

III. The conteirmor is ordered to pay a

fine/damages to complainant and is ordered to pay

a fine to the court; however, the contenmor may

purge himself of the fine payable to the court by

p.56


POSTON v. POSTON

complying with the prior court order.

IV. The contemnor is ordered to pay a

fine/damages to complainant and is given a jail

sentence to be served until he agrees to comply

with the prior court order.

The following are examples of criminal contempt sanctions:

1. The contemnor is ordered to pay a fine to the

court. Even if the contemnor performs the

affirmative act required by the prior court order,

the fine must still be paid.

II. The contemnor is sentenced to jail for a definite

period of time. Even if the contemnor performs the

affirmative act required by the prior court order,

the contemnor must still serve the entire jail

sentence.

III. The contemnor is given a choice between

paying a fine to the court or serving a definite

period of time in jail. The contemnor must do one

or the other, thus he cannot purge himself entirely

of the sanction.

In our opinion, it is impossible to determine whether the

contempt sanction in this case is criminal or civil.1 The contempt order is


1The Court of Appeals based its finding that the contempt was

criminal in nature on the fact that respondent had to pay petitioner's

attorney's fees regardless of whether she complied with the family court

orders prohibiting her from having contact with her children. However, as

discussed above, the award of the attorney's fees is not determinative.

Petitioner was awarded attorney's fees for successfully bringing this

matter before the family court. The family court had the discretion to

determine whether to reimburse petitioner for the expenses he incurred in

pursuing this matter. Thus, the court is not required to provide

respondent with an opportunity to purge herself of these attorney's fees in

order to hold her in civil contempt.

p.57


POSTON v. POSTON

not clear; instead, it is a hybrid because the sanction has characteristics of

both civil and criminal contempt.

While the potential sentence of imprisonment is for a definite

period, it will not be imposed unless and until respondent violates one of

the orders at issue. This is a characteristic of civil contempt because

respondent can avoid the prison sentence by complying with the orders

prohibiting her from having contact with her children. Respondent can

purge herself of the prison term by performing the affirmative act --

complying with the family court's orders. Moreover, other language in the

family court order at issue indicates the purpose of the contempt sanction

is to coerce respondent to comply with the orders prohibiting her from

having contact with her children, not to punish her for violating the

previous court order. If the purpose of the sanction was to punish

respondent for violating the order, the family court would have ordered

respondent to prison immediately instead of making the sentence

conditional upon future violations of the orders.

On the other hand, if respondent violates the orders

prohibiting her from having contact with her children, she will go to jail

for a fixed period of time with no ability to purge herself of the sentence.

This is a characteristic of criminal contempt.

Further, the family court order can be read as imposing a

sanction on respondent for future alleged violations of the orders without

any determination by a tribunal that respondent willfully violated the

order on that occasion.2By punishing respondent for future violations

without first holding a hearing to determine if respondent willfully

violated the orders, the court could potentially violate respondent's due

process rights under the Fourteenth Amendment of the United States

Constitution and Article I, § 3 of the South Carolina Constitution. See

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (most

procedural requirements applicable to other criminal trials are applicable

to a hearing on criminal contempt including notice and an opportunity to


2JudgeCuretondiscussedthis possibility in his concurring and

dissenting opinion. Poston, supra. However, Judge Cureton only

addressed the new restriction added in the 1995 order. He concluded the

order can be read to prematurely sanction respondent for violating the

new restriction in the 1995 order in the future.

p.58


POSTON v. POSTON

be heard); Hicks v. Feiock, 485 U.S. at 632, 108 S.Ct. at 1429-30, 99

L.Ed.2d at 731-32 ("criminal penalties may not be imposed on someone

who has not been afforded the protections the [United States] Constitution

requires of such proceedings"); State v. Brown, 178 S.C. 294, 182 S.E. 838

(1935), appeal dismissed by, 298 U.S. 639, 56 S.Ct. 750, 80 L.Ed. 137

(1936) (due process requires a person shall have a reasonable opportunity

to be heard before a legally appointed and qualified impartial tribunal

before any binding order can be made affecting his rights to life, liberty, or

property); 16A Am.Jur.2d Constitutional Law § 812 (1979) (due process

requires notice and an opportunity to be heard). Compare with Morrissey

v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (requiring a

hearing be held prior to revoking probation because it must be determined

if the violations warrant revocation); see also 59 Am.Jur.2d Pardon and

Parole §§ 101 & 106 (1987). Like probation revocation, respondent cannot

be punished for violating the orders in the future unless the willfulness of

the violation is shown by clear and specific acts or conduct. Moseley v.

Mosier, supra. If in the future respondent violates the family court orders,

a new contempt proceeding must be initiated.

Therefore, we affirm that portion of the Court of Appeals'

opinion remanding the case to the family court. However, we reverse the

Court of Appeals' finding respondent was held in criminal contempt. Upon

remand, the family court should clarify its intent and issue an order

setting forth a contempt sanction that is either clearly criminal or clearly

civil in accordance with this opinion.

II.

Petitioner claims because the contempt was civil in nature, the

Court of Appeals erred in vacating the award of attorney's fees to

petitioner. We agree.

As discussed in Section 1, the imposition of attorney's fees on

respondent was not intended as part of the sanction. Instead, the family

court imposed the attorney's fees on respondent because petitioner was

successful in bringing this action and petitioner should be reimbursed for

the expenses he incurred. Thus, we reinstate the family court's award of

attorney's fees to petitioner.

AFFIRMED AS MODIFIED IN PART; REVERSED IN

PART; AND REMANDED.

FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.

p.59